AR 97-4(9) requires adjudicators to apply the principles described in DI 52755.010A.2 through DI 52755.010A.4 below when:

• •

  The adjudicator is deciding a subsequent disability claim with an unadjudicated period; and

• •

  The subsequent claim arises under the same title of the Act as a prior claim on which there has been a final decision by an ALJ or the AC that the claimant is not disabled.

NOTE: For information on “Period Adjudicated,” refer to DI 27510.001.

When adjudicating the subsequent disability claim involving an unadjudicated period, the adjudicator must:

• •

  Apply a presumption that the claimant continues to be not disabled; and

• •

  If the presumption is not rebutted under DI 52755.010A.3 below, determine that the claimant is not disabled with respect to that period.

A claimant may rebut the presumption of continuing nondisability by showing a “changed circumstance” affecting the issue of disability with respect to the unadjudicated period. A “changed circumstance” refers to a change in the circumstances on which the ALJ or the AC based the final decision that the claimant was not disabled.

A change in the criteria for determining disability on which the ALJ or AC decision was based constitutes a “changed circumstance” affecting the issue of disability with respect to the unadjudicated period. The following chart provides some additional examples of a “changed circumstance” which rebuts the presumption that the claimant continues to be not disabled.

1. a. 

   Even if the presumption is rebutted under DI 52755.010A.3 above, the adjudicator must still adopt certain findings, in accordance with DI 52755.010A.4.b and DI 52755.010A.4.c below, contained in the final decision by the ALJ or AC on the prior claim when adjudicating the subsequent disability claim.

2. b. 

   The requirement to adopt prior findings when adjudicating the subsequent claim applies, as appropriate, only to:

   • •

     A finding of a claimant's RFC, education, or work experience, or other finding required at a step in the sequential evaluation process for determining disability for title II disability claims, or for title XVI disability claims of adults (individuals age 18 or older), as described in DI 52755.010B.1.a;

   • •

     A finding required under the evaluation process for determining disability for claims for monthly title II widow(er) s disability benefits payable for months prior to January 1991 (see DI 52755.010B.1.a, NOTE); or

   • •

     A finding required at a step in the sequential evaluation process for determining disability for title XVI disability claims of children (individuals under age 18), as described in DI 52755.010B.1.b.

3. c. 

   When the presumption of continuing nondisability has been rebutted, the adjudicator must adopt such a finding from the final decision by the ALJ or AC on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless:

   • •

     There is new and material evidence relating to the prior finding; or

   • •

     There has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

If the prior file is lost or has been destroyed and the ALJ or AC decision cannot be located anywhere in SSA or by the claimant, the AR cannot be applied.

NOTE: Generally, files of denied claims are retained in the Federal Records Centers for 5 years.

1. a. 

   For individuals claiming title II disability benefits and for adults (individuals age 18 or older) claiming title XVI disability benefits, the applicable sequential evaluation process for determining disability is set forth in 20 CFR 404.1520 and 20 CFR 416.920. For claims of these individuals, a finding required at a step in the sequential evaluation process includes a finding of:

   Step 1:	• Whether a claimant is working and, if so, • Whether the work the claimant is doing constitutes SGA;
   Step 2:	• Whether a claimant has an impairment or a combination of impairments that is “severe”;
   Step 3:	• Whether a claimant's impairment(s) meets the duration requirement; • Whether a claimant has an impairment(s) which meets a listed impairment in the Listing of Impairments, • Whether a claimant's impairment(s) is medically equal in severity to a listed impairment;
   Step 4:	• Whether a claimant worked in the past and, if so, • Whether the work the claimant did in the past constitutes past relevant work and, if so, • The claimant's RFC, and • The physical and mental demands of the claimant's past relevant work, and • Based on these findings at step 4, whether the claimant can do past relevant work;
   Step 5:	• The claimant's RFC, • The claimant's age, • The claimant's education, • The claimant's work experience (including, as appropriate, the skill level of a claimant's past relevant work and whether a claimant's skills are transferable), and • In certain cases, certain other matters relevant to step 5 (e.g., whether work, having requirements that a person with particular physical and mental abilities and vocational factors can meet, exists in the national economy), and • Based on these findings at step 5, whether the claimant can do other work.

   NOTE: A finding of whether a claimant can do past relevant work or other work made in a final decision of an ALJ or the AC on a prior disability claim will be adopted only if the adjudicator of the subsequent claim must adopt all of the other above-described findings required at step 4 or step 5, as appropriate, from the ALJ or AC decision. See DI 52755.010A.4.c (bullets) for when a particular finding contained in the ALJ or AC decision, such as a finding of a claimant's RFC, will not be adopted. See 20 CFR 404.1578 for the findings that are required under the evaluation process for determining disability for claims for monthly title II widow(er)'s disability benefits payable for months prior to January 1991.

2. b. 

   For children (individuals under age 18) claiming SSI benefits based on disability, the applicable sequential evaluation process for determining disability is set forth in DI 25201.005. For claims of children for SSI based on disability, a finding required at a step in the sequential evaluation process includes a finding of:

   Step 1:	• Whether a claimant is working and, if so, • Whether the work the claimant is doing constitutes SGA;
   Step 2:	• Whether a claimant has an impairment or a combination of impairments that is “severe”;
   Step 3:	• Whether a claimant's impairment(s) meets the duration requirement, • Whether a claimant has an impairment(s) which meets a listed impairment in the Listing of Impairments, • Whether a claimant's impairment(s) medically equals the severity of a listed impairment, and • Whether a claimant's impairment(s) functionally equals the severity of a listed impairment.

   A prior individualized functional assessment cannot be adopted because there has been a change in the law and regulations eliminating the step from the sequential evaluation process for children. Also, a prior finding at step 3 that was based on consideration of former listings sections 112.02B2c(1) or 112.02B2c(2) cannot be adopted because these sections have been eliminated by a change in the law and regulations.

3. c. 

   The Chavez AR does not apply when the prior ALJ/AC decision was made for an SSI claimant who was then under age 18, but who has since attained age 18 and must be evaluated as an adult.

4. d. 

   The requirement under the Chavez AR to adopt certain findings from the ALJ or AC decision applies only if the presumption of continuing nondisability is rebutted. In some cases, the presumption of continuing nondisability will be rebutted by specific evidence; e.g., new evidence establishes that the claimant's medical condition has worsened since the period adjudicated in the ALJ or AC decision or that the claimant's impairment(s) was more severe than determined by the ALJ or AC. Often, this same evidence will constitute new and material evidence which precludes the adoption of certain findings contained in the ALJ or AC decision, including the ultimate finding that was the specific basis for the ALJ or AC decision that the claimant is not disabled, e.g., a finding that a claimant does not have an impairment or combination of impairments that is “severe”; a finding that a title II claimant or title XVI adult claimant can perform his or her past relevant work or a finding that he or she can perform other work; or findings that a title XVI child claimant does not have an impairment(s) which meets, medically equals, or functionally equals in severity of a listed impairment.

5. e. 

   Generally, findings for unfavorable and partially favorable ALJ/AC decisions are summarized near the end of the decision under a section labeled “Findings” or “Findings of Fact.” However, regardless of the format of the ALJ or AC decision, a finding, as described above, must be adopted whenever the requirements for adoption are met.

1. a. 

   Generally, “new” evidence is evidence that was not in the record before the ALJ or AC at the time of the prior decision. For purposes of the Chavez AR, it includes a new fact that automatically results from the passage of time; e.g., the moving forward of the 15-year period in which past work is relevant or the increase in a claimant's age. Even though such a new fact may constitute new and material evidence relating to a finding of the demands of a claimant's past relevant work at step 4, or a prior finding of a claimant's age at step 5, adjudicators still must adopt an ALJ's or the AC's other finding(s) required at step 4 or step 5 under the Chavez AR unless there is new and material evidence relating to such other finding(s) or there has been a change in the law, regulations or rulings affecting such finding(s) or the method for arriving at such finding(s).

   NOTE: A finding of whether a claimant can do past relevant work made at step 4, or a finding of whether a claimant can do other work made at step 5, will be adopted only under the circumstances described in DI 52755.010B.1.a.

2. b. 

   New evidence is “material” if, for the purposes of adjudicating the current claim, it would result in a finding different from the finding made in the prior decision. A finding, such as an RFC assessment, would be different from the finding made in the prior decision if there is new evidence showing that any component of the prior finding has changed. For example, when new evidence shows that a claimant's ability to walk or to concentrate has increased since the prior decision, the finding regarding RFC has changed and need not be adopted.

   NOTE: For certain findings required at a step in the sequential evaluation process, a technical outcome is that evidence is also “material” if the basis for the prior finding would change even though the finding would not. An example of this is where new evidence establishes that the claimant no longer has the same combination of impairments that an ALJ or the AC found to be “severe” at step 2 of the sequential evaluation process (for example, because one of the impairments no longer exists), but the claimant nevertheless continues to have a “severe” impairment(s). In effect, the finding is the same as before, but the basis for the finding is different from that for the prior finding and, thus, the prior finding is not being “adopted” in the technical sense.

3. c. 

   Adjudicators must not assume that all current evidence or additional evidence acquired after the prior ALJ or AC decision is “new and material evidence” which would obviate the need to obtain the prior ALJ or AC decision and to review, and possibly adopt, the prior findings. In every case, the evidence must first be analyzed to see if it is both “new” and “material” before a conclusion can be reached that a finding need not be adopted under the Chavez AR.

   Under the Chavez AR, new evidence does not have to relate to the period adjudicated in the prior ALJ or AC decision to be “material”. This is different from the rules for reopening a prior final determination or decision, under which evidence is “material” only if it relates to the period that was adjudicated in the prior final determination or decision. The new evidence may relate solely to the unadjudicated period covered by the new claim; e.g., new evidence establishes that the claimant's medical condition has worsened or improved since the date of the final decision on the prior claim. It may also relate to both the unadjudicated period and the period previously adjudicated; e.g., new evidence establishes that, beginning before the date of the prior decision and continuing to the present, the claimant's RFC was, and continues to be, more restricted than was found by the ALJ or AC.

   NOTE: See DI 20101.005 for SSA and DDS jurisdiction for reopening.

4. d. 

   If the prior file has been lost or destroyed, but a copy of the prior ALJ or AC decision is available, the adjudicator will review the description of the pertinent evidence in the ALJ's or AC's decision to determine the evidence on which the ALJ or AC based a prior finding(s). The adjudicator will compare this evidence with the evidence obtained in connection with the subsequent claim to determine if the latter evidence is new and material. In some cases, the evidence on which the ALJ or AC based a prior finding will not be clear from the ALJ's or AC's decision. For these cases, there may be instances where additional development (e.g., obtaining a copy of the relevant prior medical report that was cited, but not elaborated upon, in the ALJ or AC decision) may be of assistance in determining whether the evidence obtained in connection with the subsequent claim is new and material. In other instances, the adjudicator will need to make a judgement of whether evidence obtained in connection with the subsequent claim is new and material and, thus, permits a finding different from the prior finding. In such cases, any doubt about whether such evidence is new and material should be resolved in a manner that is favorable to the claimant.

   Per DI 52755.020B.3, adjudicators must explain in the personalized disability notice, or in the rationale, the basis for adopting or not adopting a prior finding(s).

For purposes of the Chavez AR, a decision by an ALJ or the AC on a prior disability claim that a claimant is not disabled includes (see the NOTE below for exceptions):

• •

  A decision which found that a claimant was not under a disability and denied his or her disability claim; or

• •

  A decision which found that a beneficiary's/recipient's disability had ceased or that a claimant's disability had ceased (including a decision awarding a closed period of disability).

NOTE: Such a decision by an ALJ or the AC is not within the scope of the Chavez AR if it was based on the individual’s failure to cooperate, failure to follow prescribed treatment, or whereabouts unknown. See DI 52755.005 (third bullet).

An ALJ or AC decision becomes final as of the date of notice unless:

• •

  It is timely appealed (or a civil action is filed); or

• •

  It is appealed late but good cause for late filing of an appeal or civil suit is found; or

• •

  In the case of an ALJ decision, the AC takes jurisdiction on its own motion within 60 days of the date of the ALJ decision; or

• •

  It is reopened and revised.

Interim period cases are cases where notice of the final determination or decision on an individual's subsequent disability claim is dated 04/19/88 (the date of the Chavez court decision), through 12/02/97 (the day before publication of the AR).

Post-publication cases are cases where the notice of the determination or decision on a subsequent claim is dated 12/03/97, or later, including subsequent cases pending as of 12/03/97.

Generally, a claimant who received notice of a final determination or decision by the Commissioner dated 4/19/88 through 12/2/97 (interim period case) must request application of the AR by demonstrating that the AR could favorably change such determination or decision. A claimant may so demonstrate by submitting a statement that cites the AR and indicates what finding or statement in the rationale of the prior determination or decision conflicts with the AR. The determination as to whether application of the AR could change the final determination or decision on the claim will be made at the level of adjudication that made such determination or decision on the claim. If the claimant demonstrates that application of the AR could change the final determination or decision to be more favorable to the claimant, the claim must be readjudicated at the same level it was last adjudicated in accordance with the AR. See GN 03501.015 for readjudication procedure.

While adjudicating a post-publication case, it is the adjudicator's responsibility to determine if the AR applies and, if it does apply, adjudicate the claim in accordance with the AR.